Administration Weighs Legal Action Against States That Legalized Marijuana Use
By CHARLIE SAVAGE
Published: December 6, 2012

WASHINGTON — Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act. One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law. Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.

Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response. But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him.

“It’s a sticky wicket for Obama,” said Bruce Buchanan, a political science professor at the University of Texas at Austin, saying any aggressive move on such a high-profile question would be seen as “a slap in the face to his base right after they’ve just handed him a chance to realize his presidential dreams.”

Federal officials spoke on condition of anonymity because they were not authorized to discuss the matter. Several cautioned that the issue had raised complex legal and policy considerations — including enforcement priorities, litigation strategy and the impact of international antidrug treaties — that remain unresolved, and that no decision was imminent.

The Obama administration declined to comment on the deliberations, but pointed to a statement the Justice Department issued on Wednesday — the day before the initiative took effect in Washington — in the name of the United States attorney in Seattle, Jenny A. Durkan. She warned Washington residents that the drug remained illegal.

“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” she said. “Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law.”

Federal officials have relied on their more numerous state and local counterparts to handle smaller marijuana cases. In reviewing how to respond to the new gap, the interagency task force — which includes Justice Department headquarters, the Drug Enforcement Administration, the State Department and the offices of the White House Counsel and the director of National Drug Control Policy — is considering several strategies, officials said.

One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state. The department could then obtain a court ruling that federal law trumps the state one.

A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.

Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.

Mr. Katsas said he was skeptical that a pre-emption lawsuit would succeed. He said he was also skeptical that it was necessary, since the federal government could prosecute marijuana cases in those states regardless of whether the states regulated the drug.

Still, federal resources are limited. Under the Obama administration, the Justice Department issued a policy for handling states that have legalized medical marijuana. It says federal officials should generally not use their limited resources to go after small-time users, but should for large-scale trafficking organizations. The result has been more federal raids on dispensaries than many liberals had expected.

Yup. Sounds reasonable. Republicans could score a big push in popularity if they went along with it instead of shooting it down in Congress. Do they have the balls to do that? I'm still wondering what happens if the Supreme Court gets involved.

Unfortunately the controlled substance act has been attacked many times but there's broad support for it on the court. The right because "OMG demon weed!" And the left does not want to weaken federal power to regulate interstate commerce. Only Congress can legalize it.

__________________ how many emo kids does it take to change a lightbulb? HOW MANY?! none they just sit in the dark and cry

The Obama admin will tighten down on federal drug laws because the banks that launder billions of drug money need it to be illegal to keep the prices up on the black market.

This is primarily why marijuana is illegal on the federal level in the first place. Just like everything else at the federal level, it's all one giant scam.

That's why we're still in Afghanistan and why we probably won't ever leave that region. Our military over there is growing shit tons of opium, that and to keep the Russians and Chinese away from the regions oil.

Is it your job to make the average conspiracy-theory prone libertarian look sane by comparison?

__________________

“The American people are tired of liars and people who pretend to be something they’re not.” - Hillary Clinton

Obama had better find a way to look the other way on this. A majority of the people that reelected his ass fervently support legalization.

Combine that with conservatives wanting states to have more governmental control over it's people. The only ones that are going to applaud Obama if he goes after these states are hardcore, right wing, Christians. That's it. He can never, ever, please them outside of this one opportunity. And let's face it, Republicans are fighting for their future lives in elections because of their unwillingness to step further away from them.

Obama needs to find a way to tactfully let this play out. This is how prohibition's end got started. State by state.

To me that seems to imply that the Attorney General acts according to the POTUS' will in these matters. This is the person who is holding it up:

Michele Marie Leonhart is an American career law enforcement officer and the Administrator of the Drug Enforcement Administration (DEA). Since the resignation of Administrator Karen P. Tandy in the fall of 2007, Leonhart also served as Acting Administrator of the DEA. On 2 February 2010, President Barack Obama nominated Leonhart for the position of DEA Administrator;[1] the nomination was sent to the Senate Judiciary Committee for consideration (nomination no. PN1430-111).

Leonhart has consistently turned down research into the therapeutic and medicinal benefits of marijuana, and has a track record of undermining state law with regard to legal medical marijuana. On July 21, 2010, several pro-legalisation groups called on President Obama to withdraw his support of Leonhart, including SSDP, MPP, NORML, LEAP, and DPA. [10]

In 2011, the Washington Post reported that "994 people younger than 18 were killed in drug-related violence between late 2006 and late 2010" and that "[i]n 2009, the last year for which there is data, 1,180 children were killed, half in shootings."[11] In response to these statistics, Leonhart declared that while it "may seem contradictory, the unfortunate level of violence is a sign of success in the fight against drugs.”[11]

In 2012, Leonhart testified before Congress and refused to say that marijuana is less addictive or harmful than methamphetamine, heroin, or crack-cocaine

I believe you are correct that she is one of the problems. Though who let her stay around? They just need to replace her

Taking into consideration past actions of this administration, my guess is that if that state has electoral votes critical to the next election, the response is soft. If it is heavily Blue or Red, you throw down the hammer. Not what I'd do, but what I think will happen.

__________________The welfare of humanity is always the alibi of tyrants

Wouldn't suing the states over this be the approach that's consistent with them suing Arizona over the immigration thing? They sued Arizona because Arizona was trying to enforce rules that were contradictory to Federal law enforcement, correct?
Or is that different, because Arizona was taking an active role in law enforcement, while the states here are basically being passive?

The people in WA and CO aren't interested in medical MJ, they want recreational MJ. That requires congress.

Obama and the DEA cant completely deschedule MJ, and if its scheduled at all class 2, class 3, whatever, it is illegal without a doctor's prescription.

Slight correction on this. A schedule 5 drug could be sold OTC, but it has to be for medical purposes, and there could be forms to fill out and record-keeping of the sale. (eg, those powerful cough medicines that are sometimes used to make meth)

There's no way in hell MJ will ever be rescheduled to schedule V.

__________________ how many emo kids does it take to change a lightbulb? HOW MANY?! none they just sit in the dark and cry

Wouldn't suing the states over this be the approach that's consistent with them suing Arizona over the immigration thing? They sued Arizona because Arizona was trying to enforce rules that were contradictory to Federal law enforcement, correct?
Or is that different, because Arizona was taking an active role in law enforcement, while the states here are basically being passive?

The states have every right to fold their arms, close their eyes, shut their mouths, and refuse to help the feds in any way.

They probably can't set up a system to regulate and/or sell MJ if the feds challenge that.

__________________ how many emo kids does it take to change a lightbulb? HOW MANY?! none they just sit in the dark and cry